Minister of Health and Long-Term Care Dr. Eric Hoskins introduced Bill 41, the Patients First Act, on October 6th. Bill 41 replaces June’s Bill 210, which died when the Premier prorogued the Legislature on September 12.

There was significant stakeholder feedback on the original Bill 210. Does the new Bill 41 include any amendments to appease concerned stakeholders?

Yes. Here are the significant amendments:

LHIN Operational and Policy Directives – Hospitals Excluded. A significant win for the Ontario Hospital Association — public hospitals and the Ottawa Heart Institute have been exempted from the LHINs’ new powers to issue operational and policy directives to HSPs. Long-term care homes were previously exempted in Bill 210 (and this exemption remains). Both the OHA and the OMA had expressed concern that the unlimited scope of this directive-issuing power could threaten hospital autonomy and self-governance.

LHIN Operational and Policy Directives — Limits on Directives Issued to Religious Organizations. Religious organizations are not exempted from the LHINs’ powers to issue operational and policy directives. However, the LHIN’s powers are abridged. The LHIN may not issue directives that would unjustifiably require a HSP that is a religious organization to do something contrary to the religion of that organization. One can imagine that Catholic HSPs were concerned that procedures contrary to the Catholic Health Ethics Guide might be imposed by directive.

LHIN Operational and Policy Directives — Notice Required. Bill 41 adds a new requirement that both the Minister and affected HSPs be given notice of any draft directive. The specific amount of prior notice is not prescribed; a notice could be given only a day before the directive is issued.

LHINs Must Give Minister Notice of Appointment of an Investigator. The LHIN must give both the Minister and the affected HSP notice before it appoints an investigator over the HSP. This is new to Bill 41. Again, no specific amount of prior written notice is prescribed. Oddly, the notice provisions for appointing supervisors (supervisors have more powers than investigators) were not updated in Bill 41. Bill 210 contemplated that the affected HSP receive prior notice. Bill 41 does not add a requirement that the Minister also receive notice. Perhaps this is based on an assumption that the LHIN will always appoint an investigator before escalating to the appointment of a supervisor, in which case the Minister would already be on notice? But this assumption is baseless — nothing in Bill 41 requires the appointment of an investigator to precede the appointment of a supervisor by a LHIN. We would have expected that the Minister would be given notice of any appointment of a supervisor.

Community Service Providers to LHINs are excluded HSPs. Bill 210 added to the list of HSPs under the jurisdiction of the LHINs – particularly, primary care providers such as family health teams, nurse-practitioner-led clinics, and aboriginal health access centres. Bill 41 excludes from that list any entity that is a service provider under the Home Care and Community Services Act (HCCSA) and that is also a vendor of a “community service” to the LHIN, but only in respect of that purchased service. This excludes a long list of community service providers from the impact of Bill 41 – at least to the extent the LHIN purchases the community services from them. We presume the rationale for this exclusion is that the LHIN’s control of purchased service providers is through its negotiated services agreement with those service providers. One could envision significant conflicts of interest if the LHIN had regulatory and funding control over a purchased service provider. Recall that “community service” under the HCCSA is broadly defined to include:

Community support services, which include the array of meal services, transportation services, caregiving support services, home repair and maintenance services, friendly visiting services, security check services, social or recreational services

Timing of Voluntary Integration Reviews. Bill 210 changed the review period for a LHIN to review voluntary integrations by HSPs from 60 to 90 days, and added a second phase of further review. In this second phase, the LHIN could request further documents or information and have 90 additional days for the review. Bill 41 tweaks this second phase of the review: the LHIN may only exercise its rights to request further documentation once, and the second review period is reduced to 60 days (from 90 days). This does not address one of our concerns: we were hoping that integrations before the LHIN under the current 60-day timeline would be grandfathered. Integrations currently underway have rigid timelines and are often reliant on the LHIN working within the current 60-day review period.

Imposing a SAA on a HSP requires Negotiations, Meetings and Notices to the Minister. The process by which a LHIN may impose a service accountability agreement (SAA) on a HSP is more detailed and requires further steps in the negotiating process:

written submissions from both parties must be exchanged, setting out the facts/events giving rise to the inability to settle the SAA, whether these facts/events are specific to the HSP or systemic, and potential options for settling the terms and conditions of the SAA (60 days)

actual meetings between CEOs and then between Chairs before the LHIN gives notice of an offer to settle the SAA, which notice must be copied to the Minister

if the HSP rejects the LHIN’s offer, it must state reasons and provide the reasons to both the LHIN and the Minister

the LHIN must consider the HSP’s reasons, but may ultimately impose a SAA on the HSP with notice to the Minister.

Reasons for Asking for Information under Regulations Explained. The OMA had expressed concern about Bill 210’s ability to allow Cabinet to establish regulations requiring physicians to provide information to the LHIN. Bill 41 does not change this potential regulation-making ability, but it does state clearly why the information may be requested of prescribed persons such as physicians: “in order to support collaboration between health service providers, local health integration networks, physicians and others in the health care system, and to support planning of primary care services, including physician services, that ensure timely access and improve patient outcomes, including information to facilitate understanding by the network of, (a) transitions in practice, including opening, closing, retirements and extended leaves; and (b) practice and service capacity to address population needs of the local health system in the geographic area of the network.”

If you wish to discuss Bill 41 or arrange for an educational session for your Board, please contact Kathy O’Brien at kobrien@ddohealthlaw.com.